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Not Counting Yet, But Just in Case…

None of us have any idea what cards Patrick Fitzgerald might be holding at this moment. He has played a brilliant hand of poker up to now, keeping everything very close to the vest, with all the leaks seemingly coming from frustrated defense lawyers trying to salvage the reputations of their political clients. It does feel lately, however, like something is about to explode, what with all the correspondence leaks and the disappearance of Karl, and all. Maybe it’s just my brain from all the caffeine and anxiety and praying for an indictment miracle, but there appears to be a hum in the air, a tiny sound of something trying to burst forth into the light of day.

With that in mind, an exploration of potential criminal charges is in order, so that if and when indictments are announced, we’ll all be in the know on what evidence Fitz has and what sorts of prison terms the indictees will be facing. (Note that I used the plural — a girl can dream, after all.)

To interpret any statute or law, all you have to do is look at the plain language in which it is written. Okay, I know that is a laughable sentence, considering lawyers and politicians write these laws, but that is what all the case law says — go with the plain meaning of the words. Essentially, a law means what it says it means (unless you are given guidance elsewhere, such as in a court opinion or another law that tells you it means something else — but that’s a whole ‘nother blog posting.)

Those of you who have been following the Traitorgate case as obsessively as I have will be aware that there are a number of charges that could be filed, depending on what evidence Fitz has and what he can actually make stick. What I want to do here is detail a few of the possibilities, just in case there is a big announcement soon, so we can all move forward on much the same page. (Cue the popping of champagne corks here. Oh no, wait. Not yet…darn it. I love champagne.)

A short word on how prosecutors come up with indictment charges. Prosecutors consider a lot of factors when looking at what to charge: the amount of physical evidence and how certain they are of its results; the amount of circumstantial evidence that will have to come in through witness testimony, how reliable those witnesses are likely to be at trial, and the veracity and history of the witness (Will she hold up on cross examination? Not that I have anyone in mind here…um…Judy); the elements of the statute and how the evidence meets up with what he is required to prove; and a lot more.

There is a calculus that goes into these determinations, and a lot of it depends on the prosecutor. If you have a prosecutor who wants to maximize resources and minimize time wasting, you may see indictments with only rock solid charges that will result in a lot of plea deals, but will also let a number of criminals off the hook of indictment because of iffy cases. If you have a prosecutor who is a crime and punishment sort, and doesn’t really care about the resources needed but is more gung ho about putting the skeezeballs in jail, you get a lot of indictments, some of which are more iffy, and a LOT of trials.

I was somewhere in the middle as a prosecutor, and I get the feeling that Fitz is as well: not happy with criminals, really unhappy with anyone who would wantonly jeopardize national security, but also conscious of conserving taxpayer dollars where he can. I look for fairly solid indictments from him and this jury, without a lot of fluff and nonsense, but a lot of heft to the evidence behind them when and if they go to trial. This is, of course, done in consultation with the members of the grand jury hearing the matter. Honestly, it is a lot like poker in a lot of ways, it is just that the stakes are so much higher.

So, enough background. On with the charges.

18 USC 793: Gathering, transmitting or losing defense information. This is part of what is more commonly known as the Espionage Act, and this statute has not been discussed widely enough in the media, frankly. The most relevent section is 793(d), which states that:

“Whoever, lawfully having possession of, access to…or being entrusted with…information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it….[s]hall be fined or imprisoned for up to ten years, or both. (emphasis mine)

What this means is that if a person were lawfully able to have access to classified information, as in someone at a high level of government who had signed a Standard Form 312 (SF 312) giving them high level clearance with all of the attached warnings against unauthorized disclosure, and that person spoke with an unauthorized person and revealed classified information, they are in deep doo doo. There is NO requirement here for a particular name to be named, or for the person disclosing the information to know exactly in what capacity a certain CIA agent may have worked. The requirement under this statute is that a person who had lawful access to information took that and used it for an improper purpose outside of what was allowable in their SF 312 agreement.

Note that the language is fairly encompassing in terms of what someone might try and do with the information: willfully communicates, causes to communicate or attempts to communicate. That’s a fairly open door in terms of conduct precisely because this is just the sort of behavior that people in government have deemed to be reprehensible and deserving of substantial penalties. Section (g) of this statute also provides for an additional conspiracy charge and penalties applicable thereto — so Fitz could get double the fun with a conspiracy charge on top of the above violation. There are also provisions for property forfeiture written into this section. (Hmmmm…wonder if that could include recently escrowed property in Maryland?)

18 USC 641: Conversion of public money, property or records. This is the statute to which John Dean referred in his FindLaw article, referencing the Jonathan Randal case. I am not as enamored with this as Dean is, simply because there would have to be some proof of document conversion. In my mind, that would have to come via Ari Fleischer, who reportedly spent time browsing through Colin Powell’s briefing book on Air Force One on the way to Africa around the time that Joseph Wilson’s op-ed appeared in the NYTimes. If Ari phoned his pals Rove and Libby (and Dan Bartlett and…well, the list could go on and on, couldn’t it?), went over what he saw about Valerie Plame Wilson and her CIA status, and they in turn phoned reporters about it…well, that may be what happened, but I’m not certain that this statute allows for a solid prosecution under those circumstances. It certainly would require that Ari testify, having flipped entirely, and hopefully several other officials who might also be in the know on this. But this would be a bit tougher, even with the Randel case as a precedent in creative prosecution. That said, it is still a possibility.

18 USC 421: Intelligence Identities Protection Act (IIPA). This was the initial red herring floated by such partisan luminaries as Victoria Toensing, who long ago sold out her prosecutor’s soul for a less valuable GOP coffee mug, and Bob Dole, who shills for Dr. Porkenheimer’s these days. IIPA requires that a defendant have affirmative knowledge that they are disclosing the identity of a covert agent and that the defendant is knowingly doing so at the time of the disclosure. Prosecutions which require that you get into the mind of the defendant at the time of the commission of the crime can be very tricky to prove — you have to do so through circumstantial evidence usually, because you can’t just tap into someone’s brain and see what they were thinking. But sometimes people brag to others who become witnesses for the State. Sometimes they leave a paper trail or some good fingerprints or something else. Sometimes they get recorded, on tape, even though they’ve asked to be interviewed off the record. Again, a girl can dream.

This is less likely, I think, just because of the hoops Fitz would have to go through, but then I have no idea how solid his evidence might be and who he has been able to flip in the inner circle. If he’s been successful at that, all bets are off on prosecuting under IIPA. The penalties for this are fines, imprisonment up to ten years, or both, and the great kicker is that should anyone be found guilty of this particular section, any sentence given under IIPA has to run consecutive to any other time — meaning if you have a defendant convicted of this and also of conspiracy, the potential ten year sentences would run back to back for a total of 20 years.

18 USC 1001: False Statements or Documents Given to FBI. This section covers alteration of documents or records (including purging e-mails and such) and false statements to investigators (in this case the FBI). Violation of this statute carries a fine and up to five years of jail time or both.

18 USC 1621: Perjury. Perjury is lying to a jury or other tribunal while under oath. It carries a maximum penalty of five years in prison, or a fine or both. It also carries a kicker — a perjury charge follows you in every other instance of testimony you may ever give: an attorney may cross-examine you on your official status as a liar in any matter before any court for the rest of your life. This may also be applied to material that has been attested to, such as documents, letters, etc.

18 USC 371: Conspiracy. This covers a situation where two or more persons get together and decide to either commit a crime together or somehow defraud the government (say by lying to investigators because they have concocted a crazy cover story that relies on journalists not to talk to the FBI). If a conspiracy is proved, it carries a maximum of five years, or a fine, or both, as its penalty.

18 USC 1924: Unauthorized removal and retention of classified documents or material. This is a beauty of a little statute that allows for charging someone for removing classified materials, for which they lacked proper clearance or authorization, and yet the penalty is low enough that it is perfect for dangling out as a potential plea bargain in lieu of a higher criminal penalty. This sort of carrot can be very useful in persuading a lower level actor to flip. This section covers moving classified documents to an unauthorized location (perhaps Ari Fleischer’s seat on AF1 from Colin Powell’s room). It carries a penalty of up to one year, or a fine, or both.

In addition to all of the above, Executive Order 12958 requires that the White House take remedial action against any person suspected of violating the terms of his SF 312 agreement for clearance. This is to be done above and beyond whatever criminal matters may be pending in the case. To my knowledge, this has not been done by this White House (oooh, surprise, surprise), and the few inquiries made by the press on this issue have been met with Scotty’s now famous, “I can’t comment on something dealing with an ongoing investigation unless you asked me a couple of months ago when we looked less guilty.” As far as I know, Rove, Libby and company still have their security clearances, even though normal people have them yanked for much, much less.

There are several other possibilities, but these are the ones that I’ve identified as fairly likely to be in play in this prosecution. Not having been a US Attorney, however, I am certain that there are a lot more statutes that Fitzgerald may be considering. In any case, this is only a small slice of what Fitz is thinking about as the indictments draw closer, if indeed there are any at all. My money is on multiple indictments, but I’m trying not to count my chickens just yet.

UPDATE: In the light of morning (and after half a pot of coffee), it occurs to me that it would be really helpful to do an illustration of how an indictment might be charged. Hypothetically speaking, of course, since I have absolutely no way of knowing what evidence Fitz actually has. (Oh, to be a fly on the wall in his offices…the suspense is killing me!) Here’s one possible scenario for a Scooter Libby indictment:

18 USC 793(d): fine, 10 years, or both, for each individual count (so 4 to 5 counts)

— 1 count for disclosure/confirmation to Judy Miller at the NY Times

— 1 count for disclosure/confirmation to Matt Cooper at Time

— 1 count for disclosure/confirmation to Walter Pincus and/or Glenn Kessler at WaPo

— 1 count for disclosure/confirmation to Tim Russert at NBC/Meet the Press

18 USC 793 (g): fine, 10 years, or both

— 1 count conspiracy to disclose identity of Valeria Plame Wilson to press (whether or not they knew she was a NOC — disclosing classified information period is a crime under this section, I think)

18 USC 1001: fine, 5 years, or both

— 1 count of making false statements to investigators (in this case, the FBI)

18 USC 1621: fine, 5 years, or both

— 1 count of perjury to the grand jury (this could be multiple counts depending on how many times false statements are made, but I’m being generous here)

18 USC 371: fine, 5 years, or both

— 1 count conspiracy to make false statements to investigators (obstructing the investigation)

So that would be a grand total of 8 or 9 counts for a single indictment of a single actor in this mess. See how fun being a prosecutor can be? Well, not fun so much as truly rewarding to know that you are helping bring to justice the sort of scumbag who would endanger national security for political payback. Here’s hoping we hear something soon — anticipaaa-aaaa-tion…

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com